# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR.JUSTICE K. BABU
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WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA,
1944
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CRL.A NO. 1077 OF 2008
AGAINST THE JUDGMENT IN SC 1150/2005 OF ADDITIONAL
DISTRICT COURT (ADHOC)-II, PALAKKAD
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## **`APPELLANT/S:`**
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PRABHAKARAN
PUNNASSERY HOUSE, NETHIRIMANGALAM AMSOM DESOM,,
PATTAMBI VILLAGE, OTTAPALAM TALUK.
BY ADVS.
SRI.P.K.MOHANAN(PALAKKAD)
SRI.VINOD RAVINDRANATH
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## **`RESPONDENT/S:`**
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STATE OF KERALA
PUBLICL PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
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## **`OTHER PRESENT:`**
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SMT. REKHA.S. SR.P.P
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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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CRL.A NO. 1077 OF 2008
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## **JUDGMENT**
Aggrieved by the judgment dated 26.05.2008, passed by the Additional Sessions Court, (Fast Track Court No.II), Palakkad in Sessions Case No.1150 of 2005, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.One Lakh.
2. The prosecution case is that on 20.02.1999 at 5.30 pm the accused was found in possession of 7 litres of arrack at Nethirimangalam in violation of the provisions of the Abkari Act.
3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made
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over to the trial court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MO1.
5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. D1 and D2 were marked on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder.
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CRL.A NO. 1077 OF 2008
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6. Heard Sri. P.K. Mohanan, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory.
8. The learned counsel relied on the following
circumstances to substantiate his contentions:-
- (i) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution.
- (ii) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.
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- (iii) The prosecution has not given evidence as to the official with whom the sample was forwarded to the laboratory.
- (iv) The various officials who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with.
9. The alleged seizure was on 20.02.1999. Ext.P4 property list would show that the properties including the sample were produced before the Court only on 22.02.1993. PW1, the Detecting Officer and PW5Investigating Officer submitted that on 20.02.1993 itself, the properties including the sample were produced before the learned Magistrate but the same were returned to be produced later before the Court. The explanation offered by the prosecution is no way satisfactory as no contemporaneous documents were prepared to show that the properties were returned as pleaded by PW1. Therefore, the explanation offered by
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PW1 for the delay in the production of the properties before the Court is not satisfactory.
10. Ext. P2 is the seizure mahazar, the contemporaneous document prepared at the scene of occurrence to evidence arrest, seizure and sampling. Ext.P2 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1, the Detecting Officer has not given evidence as to the nature of the seal used.
11. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court.
12. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical
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Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report.
13. Ext.P8 Certificate of Chemical Analysis shows that the bottle containing the sample was forwarded to the laboratory as per the letter dated 06.05.1999 of the Judicial First Class Magistrate, Pattambi and was delivered in the laboratory on 07.05.1999 through an Excise Guard by name Abdul Malik. The sample, therefore, remained in the custody of the Property Clerk of the Court till 06.05.1999 and it remained in the custody of Shri. Abdul Malik from 06.05.1999 to 07.05.1999. The learned counsel for the appellant contended that non-examination of the Property Clerk of the Court, and Excise Guard who delivered the sample in the laboratory is fatal to the prosecution. There is also no convincing evidence to show that the bottle containing the sample had any seal as pleaded by the prosecution.
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Only the packet containing the bottle in which the sample was collected had a seal in tune with the specimen seal provided. So, there is no evidence to show that the Chemical Examiner verified the genuineness of the seal affixed on the bottle containing the sample. This also supports the case of the defence that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314].
14. As the prosecution failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance.
15. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot
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therefore be sustained. The appellant/accused is, therefore, found not guilty of the offence punishable under Section 8(2) of the Abkari Act.
In the result,
- (i) The Appeal is allowed ;
- (ii) The judgment of conviction and sentence passed against the accused is set aside ;
(iii) The accused is acquitted of the offence alleged ;
(iv) He is set at liberty ;
(v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law.
**Sd/K. BABU, JUDGE**
kkj
